mikayla medic. veronica moser-sul hi van. alex sullivan. alexander tee and rebecca wingo. hello, i'm eric boling and andrea tantaros, bob beckel, dana perino, and greg gutfeld. this is the five. moments ago the booking photo of perhaps one of the worst mass murderers in american history was relieved, james eagan holmes who was read his rights in front of a colorado judge. we'll get to that in a second. first, moments ago, the family of holmes made this, the attorney of the family of holmes, made a brief statement regarding their honor student turned accused mass murderer. >> the family wants to reiterate

their hearts go out to the victims and their families. the holmes family would like to maintain their privacy. so at this time, we will not be discussing james or his relationship to his family. and we would respect courtesy in that regard. >> let's bring greta van susteren in who was in the courtroom when holmes sat in front of the judge. give us a sense. we saw the bizarre facial expressions and demeanor of this guy. what information did he give you or maybe even a prosecutor with all these kind of wacky actions? >> well, first of all we don't know what the defense will be down the road but this is not aa whodunit. he left a trail of bread crumbs. he waited outside in a parking lot for the police until they arrested him and there were a million clues. the question is whether he's

insane. no one has said the insanity defense will be raised but that's what the defense will raise. he walked into a courtroom and looked bizarre. wearing a jumpsuit, police jumpsuit, you look guilty. everybody would. he sits down, he's emotionless, so flat and sort of an empty body that walked in. he made weird eye gestures. i have no clue what that is. i thought it was peculiar that he was emotionless. he's listened to his lawyers saying don't move. no outbursts or nothing. the defense lawyers are well aware there are victims in the courtroom and don't want to enrage the victims. or he's that bizarre and that's the way he is, he's that apathetic, no emotion or perhaps medicated. i don't know. those are your three choices. but he was bizarre, he looks

bizarre and the blinking is weirder. does that mean he's insane? no, being a weirdo is no insane. we'll explore that in the weeks to come. >> this is greg, nobody ever pleads insanity after doing a good thing. i understand in colorado you can have a split from reality but know you're doing something evil. his new personality, i don't care what he is, did evil so wouldn't that trump insanity, the fact he did evil? >> no, it is an evil act. a sane person can commit and evil act. the question is whether or not you meet the legal standard. in many just addictions its whether you think it was wrong. if for instance he thought he was the joker and he had the right to do that, he was in the movie. that might be insane. that might meet the definition.

i don't know. we don't have facts and it's total guessing but it has a specific legal definition. insane people do evil things, sane people do evil things. this was the worst. the level of devastation here is absolutely unthinkable, so it's an evil act, it's whether he has a legal defense that will spare him the penalty. you can expect there's a high likelihood of the death penalty. >> let me follow up on that. states have different insanity laws, correct? and so what would be the easiest law for him, if you were just -- what would be the easiest law to get to the threshold of insane? >> it's interesting, bob. we throw legal definitions at the jury. we read them from the jury instructions. i'm not sure the people or lawyers understand them. what does it mean to appreciate

the lawfulness of your conduct? it's thrown in the lap of the jurors and whether or not they think he's crazy, whether he's insane or knew what he was doing wrong. we throw mumbo jumble at them and my experience is 12 jurors sit back, go into the jury room and wonder if he's insane. even if he did something awful none of us would do, dies his hair or paints it red, it doesn't mean he's insane. he has to know what he's doing assuming the standards are common. if he didn't realize it was wrong. that would be something that would qualify in many jurisdictions of insanity but that's way down the road. i have into idea. frankly the reason we're suspicious it will be raised is number one, he's a weirdo. number two, the guy who he tried to join the gun club membership heard his voice mail and knew something was wrong.

he knew there was something wrong with this guy. and what else do they have? the guy was caught with the goods. he's -- this is not a who a whodunit. the prosecutor says it's not a slam dunk. it's the slam dunk that he did it. it's a slam dunk whether or not there's a legal defense, meaning insanity. which is what i expect. i don't know what else he would raise. >> greta, why does his family need a lawyer and why would they have their lawyer give that statement? do you think that was necessary? >> yes, to call off the dogs, every single person is hounding them. we're hounding them, every show on fox and every other network is doing what they can to get information. that's our job. some sense, if you have a lawyer, they try to call off the dogs. they don't need a lawyer, they need someone to deviate the attention. you can imagine everyone is hounding them. we have their phone numbers. the point is to give them peace

and relief from us because we're aggressive trying to get information. >> it's not that they're in risk of legal problems. >> no, they're not in trouble with legal problems. though we want to know, did you know anything was wrong? why is it the gun club owner knew something was wrong? did he hear the voice mail? what was it? why would someone who doesn't know him be tipped off? what was he like in the weeks and days before it happened. why did he drop out of school? all those questions we want to know the and they don't want to answer. they get a lawyer and that lawyer -- i don't know what she was doing. she gave an education on california law. we're sitting here in colorado. i don't know. you know, if she managed to deviate us and sort of throw some bait to us in the media talk, then i guess she did her job. if she was trying to educate us, i'm not sure but that's not her job. >> you've been saying on the network this is a whodunit.

if you're the prosecution, how do you not go with the death penalty? what would make them not go for the death penalty. >> first of all, i don't expect -- he'll be out of office. i guess if it was -- if there was something about his background we don't know. if he's so crazy or nuts the prosecutor thought he might win an insanity defense and she might wheel and deal with the defense and say i won't go after him for the death penalty if he pleads to 12 murders. that happens in cases, a defense lawyer will -- and defendant will plead away the death penalty in exchange for a plea, saving the community and victims and saving the people from paying a fortune and putting him away forever. >> the way i understand it, to

go for first-degree murder, which then you can go for a death penalty sentencing, you have to prove extreme indifference or deliberation of the crime. he did both. who cares how he acts or makes funny faces or pretends he's sleeping or bugs his eyes. he deliberated the murder, booby-trapped his apartment and planned this. is sounds like an open and shut murder one and death penalty case. >> i don't think there's any doubt he committed the crime. there are two things to consider, one is competency and one is insanity. the question was was he insane or not. competency has to do what he's like now, whether he understand the court proceedings. people who are crazy really crazy and meet the insanity defense plan things for weeks

and months. look, if i were on the jury, i would want to know those things you're asking, what like. that's one of the reasons i talked to the family. we assumed they had contact with him. that would peace together whether or not he was, quote, insane, thursday when he gunned down those people and hurt all those others. >> in the remaining time we have, can you put us in the seat of the defense attorney? what's going through her mind sitting there with him? >> well, first of all, look we know our job. i was a defense attorney forever. the constitution says regardless what the person does you have to provide effective counsel. you can hate the crime but the job is to get that defendant to trust you so he'll listen to your advice and you can advise and process the person through the system. look, your job is not to get

chummy with the killer. it's to effectively represent him. that's the job. i don't know how easy it will be to get a defendant like that to trust you. all of a sudden a stranger says i'm here to help you, trust me. >> all right. greta, we have to leave it there. thank you for joining us. helping out the show. the right person in the right place at the right time. >> thank you. >> catch greta on the record tonight at 10:00 p.m. eastern. more tomorrow on the colorado massacre including is it appropriate to politicize this event and, if so, when is the right time. we'll be back in just a minute.

many of the people in colorado of course are grieving. some people can't help themself and talk about the politics of a certain situation or tragedy immediately following. let's take a listen. >> if he could have gotten access to the gun, what kind of bomb would he have manufactured? we're in a time of information age where there's access to all kinds of information and he was diabolical. >> this really is an enormous problem for the country and it's up to the two presidential candidates. they want to lead this country and have said things before that they're in favor of banning things like assault weapons. where are they now? >> this is not an issue about guns, it's about sick, defended individuals and it's a tragedy and i don't know there's a solution in washington to solve this problem. >> i want to point out the first sound bite was from governor hickenlooper of colorado, widely

praised for his calm, steady leadership in this. bloomberg has rubbed people the wrong way, coming out talking about begun control. >> he came out within hours on the shooting on the radio this weekend and jumped to conclusion, blaming the guns, not having a discussion on mental health. there were bodies not even out of the theater but he jumped into the debate. there's some level of political protocol you need to have in tragedy where you wait. i know it's very hard to take bloomberg seriously after going after salt and soda but i think it was in very poor taste. he came out and hammered the president for not doing enough on gun control. politically speaking gun control is not a win winner for president obama or many democrats because many in states like wisconsin and ohio and other places believe in their

constitutional right to bear arms. that's something that washington does not have the appetite for and if they have a discussion, it needs to be about mental health and about guns aren't bad, it's the sick people to get their hands on them. >> bob, a lot of conversation about dealing with the politics. i've been surprised most people set that as side. you had an interesting thought. >> i agree with you on some of this but the reality is the politics are impossible to get through. the assault weapons ban was a good piece of legislation that sunsetted but every time one of these things happens, gun control people are told you shouldn't talk about it now. you put it off then we don't get a chance to make you're arguments in the heat of the moment. it may be difficult to listen to but the reality is there's no purpose in having sr15 guns. there's no sport purpose or nothing else. the nra loves the fact they

don't have to deal with this and we're told to shut up because it's a terrible time. we have to take the heat of the moment. >> i disagree with you, bob. there's a time and place for that discussion and it's a debate that should be embraced and had. but mayor bloomberg came out, there were ten bodies in body bags in the theater and he could not wait to get his number one, most important issue -- the guy spends his own money on trying to promote increasing gun rules. he's very tuned in to it. there are families who haven't been notified their loved ones are in the theater. it's ridiculous and unfair. >> we have another topic but greg, your thoughts? >> i called this first responders. these are people that like to hear the sound of their voice and can't resist coming out. i want to go through three of them quickly.

pierce morgan on cnn came out. he works in a building with armed security, so if hack can be protected. simon rush can ko pissed off islamists. he had the luxury of armed security to save his sorry butt. as for bloomberg, he's sincere about gun control but shootings are up 11% in new york over last year. 18 homicides over the 4th of july week. he has stuff he has to deal with. >> we can't have guns in new york city. >> one thing -- when you say we should have this debate, there's a time and place for the debate, the problem is the time and place for the debate gets cold when you get farther away from these things and we cannot have that debate. >> when the bodies are still warm.

>> this debate never gets cold. have it any day of the year. just wait until the -- can i ask dana something? why does every congress person, every mayor of every city, need to put a press release out in the aftermath of a mass murder? both sides of the aisle. >> this is from mexico. puts out a press release, dude, you're in mexico. you got serious problems. you're telling us about gun control. >> that's a problem but what -- maybe one day in the future, greg, you should see some of the pictures he got for people who want to be on the show that are experts. they don't want to contribute, they wanted to be on tv. >> there's a lot of those. >> we didn't get to our favorite topic. abc's brian ross going to blame somebody on the tea party than having to take that back. that's an interesting -- we could do that. >> it will happen again next week.

>> coming up, can you effect actively say good-bye to penn state football? we'll analyze the penalty. my football knowledge is incredible so

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[♪...] penn state football will be banned from bowl games and post-season play for four years. the pa ncaa vacates all wins of the penn state football team from 1998 to 2011 and the records will reflect these changes. >> that was ncaa president mark emmert, announcing the sanctions against penn state university. here are all the sanctions, a $60 million fine, four-year postseason bans, all wins vacated and the football program loses 40 scholarships. the

eric, this is a monumental his tough penalty. can penn state recover? >> penn state can. four or five football programs can. penn state can. penn state will be able to play. can i set this up? when you go play major college sports, the environment on campus is such that the coaches are like rock stars, like gods on campus. the players are as well but the coaches, they're untouchable so there's an environment of they're holier than thou, above the law. unfortunately for penn state is didn't have to do with putting 100 bucks in a player's pocket or selling drugs, this was a bad violation of ethics and morals. so harsh penalty, penn state

brought it on themself. >> by vacating the wins, paterno, the number one whinniest coach at ncaa division 1 is now number 12. that had a lot to do with it. you're a penn state fan. >> i am. look, i understand harsh penalties, $60 million was appropriate, what i don't get is taking away the wins. a lot of players that had those wins were not involved in this. one did not have to do with the other. it's not like penn state cheated or had a camera in the other team's locker room. now punishing current players and they're allowed to flee during practice, it's an overreach. i talked to a player from 1998 and he said paterno, he was god. and it was a stun to all of us who played on the team. we never would have thought it

was sandusky. it's going to be a domino effect on girl's basketball and players who had nothing to do with. this. >> speaking about punishing the players, these kids now are able to go to play any place they want. current players on the roster and start at other schools. isn't that a mitt gating factor? >> i don't know how it works but a lot of them have the scouts and talent people looking at them like two or three years down the road, they've probably been burning up the phone lines. we don't have those anymore but calling them saying you're going to want to leave. university of miami will take you. however that works. it's not only the students and softball teams that will be hurt, the whole town in pennsylvania. >> for somebody who doesn't know football it's a good point. they're going to take the best players. >> one thing missing from the

sanctions was don't have sex with kids. that was missing from the list. here's the thing. a, if joe paterno was the dean of the school, would you negate the degrees earned while they were at the school? that's what they're doing, why would you punish the students and punish the athletes. bob, maybe you know, what about the bets made on the games? do people try to get -- they say okay, i won. now i get my money back. >> i'm one of those. >> good luck getting your money back. penn state did win six bowl games. the losing team will be the winning team. >> what about the trophies? do you have to make new trophies? >> yes. >> i des agree with you guys on the corners. when penn state -- penn state football, the whole town, happy valley, all the inns, the delis, benefit. when you violate trust, you have

to pay the price. if you don't do that, there's going to be another happy valley. >> $60 million fine. you know who has to incur that? the pennsylvania taxpayers. further in the football program, if -- this is hundreds of millions of dollars that the pennsylvania taxpayer has to ensue not to mention the civil suits likely to follow. >> imagine if you're a parent and your kid your whole life, you wanted them to go to penn state and it's july and you're going to bed, bath & beyond to get gear for the dorm room and you're thinking this isn't the best investment for my kid. >> one thing about vacating the wins, the reason it's as much about paterno as anything else is the ncaa record would have stood with the name of joe paterno on top a guy who might have been indicted for withholding information.

it's not the best thing to happen to football. it's a tough -- but that sanction was directed at joe paterno. >> he could have and should have done more but he passed away and they took his statute. the bottom line is the players know who won. >> the unintended victim, sandusky, ohio. >> that's true. >> they're going to change the name. >> i would. >> are you saying you think it was too harsh of a penalty? >> no. i don't think paterno could not have been left in the record books. if you play with fire you're going to go burned. that's what happened with people with tony robbins. what was he thinking and what were they thinking next on the five. [ male announcer ] if you believe the mayan calendar, on december 21st

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really? bad music. so many great songs with the word fire in it. smoke on the water, deep purple, light my fire and you picked that? why would you do that to me? all right. sorry. in california over 20 people treated for burns on their feet after walking on hot coals during a seminar run by tony robbins. at least three people ended up in the hospital. it was the first night of unleash the power within, a four-day thingy with 6,000 attendees. why do i suspect the power within he unleashed was coming from their wallets? did he himself walk on hot coals? we might know that answer, making the adults can charred

feet the bigger dolts, robbins makes millions. there's no magic possession for achievement other than a decade of hard work. look at anyone who has done anything, they hit their stride after 10 years. i bet it took robbins 10 years of grinning before he landed his first big fish. gurus capitalize on need which is smart because there's a lot of it to go around. the only way out of a rut is glorious hard work. if you think self help seminars are your path to riches, you're going to get burned in more ways than one. >> i think we have tape from fox & friends. a young woman that went through it that was pretty telling. do we have that here? why not play it. >> he coached us on how to do it and there were pretty much three things we have to really do.

one was to walk at a normal pace and direct. second, to keep representing cool moss, cool moss, and the third was to look away from the fire so we had to look up. and then at the end, we had to celebrate. so that was pretty much what i did. >> if ever i get mad at you or bob, i'm go to repeat cool moss, cool moss, cool moss. >> amazing. does that work? i know you've been involved in a number of cults. could this possibly work just by the fact people weren't paying attention or -- did they fail tony robbins? >> it's hard to believe cool moss doesn't work. i'm not going to try it. i know you're disappointed to prove you wrong. it should be called release the stupidity within. i blame them. the saying is you walk on hot coals for something, well, if someone said i would give you an arm and leg for that, if someone

asked you to give your arm and leg, would you do it? probably not. >> this guy is a rip off artist. ask yourself this, who is going to be a tony robbins seminar and walk on coals after. this this gig is out. the thing we talked about this morning, if you're the 15th 15th person in line and 15 people in front of you are getting burned, what the hell are you doing? after the second one, you say, no but 21? [ laughter ] >> did you hear what the girl said? the reason why i burned my feet is i wasn't concentrating enough. >> yes, it's your fault. >> does this work you ask? it certainly does because 6,000 people at 250 bucks a pop, million.5 for the weekend. >> that's why i admire tony robbins. >> the problem is they tried to do the stunt on the first night rather than the third. if they waited until everybody

had more power within, they wouldn't have had this it disaster. >> are you into self help? >> remember last week i did a tribute to steven coffey, the author who passed away, the seven habits of highly effective people, which you clearly did not read. i think there's a lot of things these people could have done with 250 bucks over a weekend than trying to improve themself. >> tony robbins has done this before. there's question about whether the things he put down before were phony things that light up, coals like in a fireplace. this guy put real coals down and 21 people -- come on! >> i have a question. so many people tell you they'd walk on hot coals for you. are you going to rethink that? >> i could do that in my apartment for like, 10 grand. >> would you try to leave andy do that on red eye? >> i will.

then have jasper come over. >> dana said it's all a ploy. he's going to say we didn't work hard enough. next time we'll bring back the same 21 people that burned than feet. >> and double next time. >> very good point. coming up, will swimming swami michael phelps make another big splash at the olympics? yes, the horrible puns are beginning. please stop with the puns and give me good music. we asked over 3,000 doctors to review 5-hour energy and what they said is amazing. over 73 percent who reviewed 5-hour energy said they would recommend a low calorie energy supplement to their healthy patients who use energy supplements. seventy-three percent.

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♪ >> the final count down is on to the olympics 2012 in london. open ceremonies are four days away and the man that everybody's likely going to watch again this year is swimmer michael phelps. he could leave as the most decorated olympian ever. he talked about the training

since the games in beijing. >> there's countless times i want to be like, i don't want to do this. i don't want to go to the pool every day. >> now is it hard getting out of bed? >> no, because one, we're so close. and two, because i'm actually enjoying it. i'm swimming well again. i'm 26 and i don't recover as fast as i have in the past. >> how much is left in michael's tank for london? that will be the question of the olympics. >> i don't think he has much left in his tank. he's compete in four events and needs three medals to be the most highly decorated olympian and i believe he can do it because he's going to be a smarter swimmer and this is his last shot and he could down in the history books. i love him. shocking, but i love him. >> he was a hero to a lot of people in the beijing olympics,

he won the last -- he won eight medals. subsequent to that, they had a picture of him doing drugs with a bong. he didn't want to work out. are you okay? >> he said he couldn't get up for the workouts and this is 2009. so he's gotten it back together but i have a 13-year-old son who watches the olympics and looks up to these athletes. i don't like a picture of him doing bongs. >> we had a debate about about penalizing athletes. he was suspended. so what if he doesn't want to work out. after eight gold medals i would be sitting on my duff. >> he deserves bong work. >> i have to give you the heimlich. >> what's the favorite olympic event? >> actually two. the downhill and the horse thing. >> don't go there, bob. >> i'm going there.

one of the u.s. olympic horses is owned by ann romney, and it's a very eloquent event and i really -- i'm pushing for ann's horse to win. but the downhill -- >> does that mean you place add bet? >> it's in the giant slalom. >> they don't play hockey here? >> no, man, what a bummer. i can't stand the olympics. it drives me crazy. >> i'm looking for the euro and pound competing in the diving competition. a little political -- >> i'm excited about the olympics because it builds social skills. we need positive stuff and there are a arab countries allowing women to compete. i have a picture of the swim team. oh, boy. there they are. anyway. >> do you think -- >> dana, or a serious note, this is the 40th anniversary of the munich massacre where 11 israel

athletes were gunned down and coaches and the ioc president, says there won't be a moment of silence. do you agree with that? >> why not do t i don't know who they're protecting from the truth. president obama lobbied for them to do the moment of silence as several other countries did but there's a fear that exists about offending countries that don't recognize israel. that is shameful. >> for some extremists, killing jews is an olympic event. >> the french are known to be sensitive to offending muslims and extremists so i'm not surprised the chairman doesn't want to do it. >> they're going to investigate muslim players that refuse to play with israelis and fake

injuries. >> the idea of not -- that was the most terrible event to happen in the olympics ever, including the nazis having the olympics in 1936. the idea they won't recognize doesn't make sense. the french continue to stick their nose into each other's business. >> all right. bad. really, really shameful. >> i think it's very shameful and they should reconsider. one more thing, like bob does it, one, more, thing, is up next. >> one more thing!

>> time for one more thing. dana's kicking it off. >> forgive me, i have a cough drop bob gave me and i promised on fox & friends i would get a cough drop from bob. >> get to one more thing. >> this is a great story, an amaze unlikely art collectedder who passed away a week ago, that's his wife. they were -- her name a dorothy. they met and fell in love. fell in love not only with each other but modern art.

this is not funny, greg. he was a retired postal worker, they had a huge collection of modern art and donated it to the national gallery. and you're being -- what is with you? >> what are you talking about? this is a great story. my banned phrase is, take it away ... i'm in a good place. this is what airy said after being rejected in the bachelorette. she told him she didn't want him and he came back and said i'm in a good place. that means their miserable but the winner, jef, one f, is a more monday mormon, so we may be ready for a mormon president. >> now i understand the tweet last night, you said know emotions are locations. >> i'm in a happy place. >> i got it. >> all right, i went to a happy

place on friday night. it was a sad day but i decided to go to one of my soft rock concerts. i'm a soft rock junky, am borrow shah and christopher cross and jamming to the danger zone and the guitar points auto -- to me. he starts giving me the five and mouthing the words, i love that show. here he ran offstage and said the whole band is a fan of our show and said that was very cool. there you go. kenny loggins. >> danger zone. >> i went to the beach on long island and in the course of going to the beach club, next to the club there was a place for the psychiatric institute for the criminally insane and i ran across somebody that's a relative of somebody at this table. can you bring that in close? greg gutfeld's long lost twin in

the psychiatric institute and he's okay now. >> all i can hear in the background is the producers laughing. we have to move along. it's hard to move to a new city and i heard you say it's hard to get a good pair of shoes. i was shopping for shoes and i bought you that. >> thanks, that's what i wanted! great. >> that looks good. >> i hope it's the right size. >> it's wonderful. thank you very much. >> very nice. >> all right, guys, one more thing tonight. sad news to report, sally ride, the first american woman in space died after a 17 month battle with cancer. she was 61. she blasted into space on the challenger. her family are in our prayers and i think president obama made a nice tribute speech to her and that's it for